Smith v Northamptonshire County Council [2009] UKHL
27
On 20 May 2009 the House of Lords gave judgment in favour of the
employer in the case of Smith v Northamptonshire County
Council, and in so doing halted the recent trend of
claimant-friendly judgments in cases concerning the provision of
work equipment. Indeed, the judgments of PRP Architects v Reid
[2006], and Spencer-Franks v Kellogg Brown and Root Ltd
[2008] seemed to extend the scope of the Provision and Use of
Work Equipment Regulations 1998 to equipment that was not in the
direct control of the employer. While the facts of Smith mean that
those cases have not been challenged, their Lordships provide some
guidance on the limitations of the regulations.
The council employed Mrs Smith as a driver and carer. Part of
her job was to collect clients from their homes and take them by
minibus to a day centre. Gina Cotter was one such client. She was a
wheelchair user. To collect her from her home, Mrs Smith required
to take her from her living room and down a wooden ramp to the
minibus. The NHS had installed the wooden ramp ten years
previously. It had been inspected by the council as part of a
general risk assessment of Mrs Smith's job. On 1 December 2004 the
ramp crumbled as she was using it. She stumbled and injured
herself. The defect that caused the accident was latent.
Mrs Smith raised her case under regulation 5(1) of the 1998
regulations. That regulation imposes strict liability on an
employer for equipment which is poorly maintained or defective. The
question for the courts was whether the regulations applied to the
ramp.
The judge at first instance held that they did. In his view the
ramp was "work equipment" as defined by regulation 2(1), and was
being "used at work" in accordance with regulation 3(2). The
council appealed.
The Court of Appeal overturned the decision. They found that the
ramp was not work equipment. The fact that the council had not
installed the ramp, that they had no means to maintain it, and that
the ramp was part of Mrs Cotter's property led them to conclude
that the regulations did not apply. This time Mrs Smith
appealed.
Their Lordships were unanimous in agreeing that for the
regulations to apply, the court must follow a two-stage test.
First, the item must be "work equipment" in terms of regulation
2(1). Second, it must be provided for use or used by an employee at
his work, as defined by regulation 3(2).
By the time the matter reached the House of Lords the council
had conceded that the ramp could be classified as work equipment.
Therefore, stage one of the test had been completed. The only
question for their Lordships was whether the ramp was "provided for
use, or used …at work". Three of the five law lords concluded that
it was not.
Lord Mance's speech is particularly helpful in understanding the
reasoning of the majority. He adopts Lord Hoffman's view in the
case of Spencer-Franks that the regulations should not be given a
literal interpretation, but a purposive one. The starting point is
to look at the purpose of the directive on which the regulations
are based. By undertaking that analysis Lord Mance concluded that
what matters here is whether there is a "specific nexus (beyond
the mere fact of use)…between the equipment and the employer's
undertaking". His view was that this link underlies many of
the regulations in the body of the legislation, imposing as they do
the need for some control over the equipment itself.
As the council did not own the ramp and had no responsibility
for it, Lord Mance concluded that there was no link between the
council and the ramp. They did not have control of the equipment.
Therefore, the ramp was not work equipment in the context of the
regulations. The fact that the council had inspected it and had
control of how it was used by their employee did not meet the
crucial test. These were the aspects that Lord Hope and Baroness
Hale, in their dissenting speeches, found to be important in
holding that the regulations were applicable.
We can see, therefore, that the issues in this case were finely
balanced. The decision is very fact-dependent. However, this case
does support a more commonsense approach to interpretation of
PUWER. While the purpose of the regulations is, of course, to
protect workers their Lordships have indicated that this cannot
translate to a blanket responsibility imposed on employers for any
item used by an employee, during the course of the working day.
Contributed by Katy Nisbet